The Harper government did not consult the director of public prosecutions about its controversial plan to put him in charge of the investigative arm of Elections Canada — a move that departs from a long-standing principle that prosecutors and investigators should be kept separate.
The plan to hive off the commissioner of elections from Elections Canada and move him under the auspices of the director of public prosecutions is a key component of a proposed overhaul of election laws, which has been almost universally panned by Canadian and international electoral experts.
Chief electoral officer Marc Mayrand says he was not consulted on Bill C-23, the so-called Fair Elections Act.
(What is the Fair Elections Act? Read The Globe and Mail’s easy explanation)
Nor was the commissioner of elections, Yves Cote, who is responsible for enforcing election laws and investigating breaches.
Both have spoken out against the move, which they fear will impede investigations and reduce the commissioner’s independence.
Brian Saunders, the director of public prosecutions, declined a request for comment from The Canadian Press. But spokesman Dan Brien confirmed that Saunders was not consulted either.
Pierre Poilievre, the minister responsible for democratic reform, has shrugged off the objections of Elections Canada.
“It’s not surprising to me that Elections Canada and the CEO (chief electoral officer) in particular, who is the major opponent of this, is against it,” Poilievre told CBC’s The House.
“He wants to have this control and this power for himself. We don’t think it’s appropriate for him to be in charge of the investigator.”
But others think it’s inappropriate for the director of public prosecutions, who reports to the attorney general, to be in charge of the investigator, who is supposed to be independent of the government.
And they fear it could compromise the ability to successfully prosecute breaches of election laws.
“It would be unprecedented for Canada,” said Lisa Blais, president of the Association of Justice Counsel, the union for 2,500 federal government lawyers, including those who work for Saunders at the Public Prosecution Service of Canada (PPSC).
Separating those who investigate breaches of the law from those who prosecute the offenders is “a legal principle, a practice, a convention that we’ve followed since time immemorial,” she said in an interview.
Blais, a prosecutor who has worked at the PPSC on cases involving breaches of election laws, said “dangerous things can happen” if prosecutors are not detached from investigations.
“Prosecutors can start wearing blinders and have tunnel vision,” rather than independently assessing whether there’s a reasonable prospect of conviction and whether prosecuting a case is in the public interest.
Some of Canada’s most infamous wrongful convictions cases, such as David Milgaard, occurred in part because “there wasn’t a proper or enough separation between the investigation side and the prosecution side and they became too intertwined,” Blais added.
Blais was among the prosecutors at PPSC who worked on the so-called in-and-out case, in which the Conservative party and its fundraising agency were convicted of orchestrating a scheme to circumvent the party’s spending limit in the 2006 election campaign.
In that case, she said some prosecutors were required to help the elections commissioner during the investigation to secure search warrants. But the principle of separation was so strong that a different team of prosecutors was assigned to assess whether charges should be laid and to handle the case when it went to court.
The Commons committee studying Bill C-23 has heard similar warnings about the inadvisability of moving the investigative branch of Elections Canada into the public prosecutor’s office.
“Bill C-23 would bring under the same roof two functions that are normally, and for good reasons, kept separate,” commissioner Cote told the committee last week.
He added that it “also raises concerns with respect to at least the perceived independence of the commissioner from the government of the day.”
Cote’s predecessor, William Corbett, issued a similar warning.
Apart from the principle of keeping the two functions separate, Corbett said there are practical, operational reasons why moving the commissioner out of Elections Canada is a bad idea.
“Elections Canada is a vital centre of information and intelligence and expertise in federal electoral matters and there isn’t any other,” he said. “The director of public prosecutions certainly is not.”
Moreover, he said investigators are usually housed within a regulatory agency like Elections Canada because “the goal is not prosecution, the goal is compliance” with the legislation the agency is responsible for implementing.
During election campaigns, Corbett said the elections commissioners’ team of investigators and legal advisers work 12 hours a day monitoring the conduct of parties and candidates and investigating irregularities and complaints. The goal is to ensure the law is obeyed as the campaign progresses, not to compile evidence for prosecutions down the road.
“I don’t know who is going to do it in the next election because I’m certain the DPP (director of public prosecutions) isn’t going to do it. I don’t know who else is going to do it.”
Bill C-23 would not only move the investigative branch out of Elections Canada, it would cut the chief electoral officer out of the process of choosing an election commissioner and bar anyone who has worked for Elections Canada from applying for the role.
Poilievre’s rationale appears to be based on the assumption that the chief electoral officer, whom the Conservatives have accused of bias against their party, has been directing investigations.
Both Cote and Corbett categorically denied that. They said the commissioner has complete independence in conducting investigations.
From her experience dealing with Elections Canada, Blais said the perception of bias is “wrong.”
“They were consummate professionals ... They agonized over every decision they made, they justified their position, they sought out advice and they had evidence to back up any kind of complaint or charge that was made,” she said.
“There was no political bias, absolutely not.”